CLAIM FOR LOSS OF PROFIT ON PATENT

Press, Volume C, Issue 29500, 29 April 1961, Page 12

CLAIM FOR LOSS OF PROFIT ON PATENT

"The Press" Special Seru.ce

WELLINGTON, April 28. An allegation- that a patent agent or his employees had negligently or wilfully delayed an application for a patent was made in the Supreme Court, Wellington. The plaintiff was Lancelot William Loader, a manufacturer, of Auckland (Mr R. E Harding), and the defendant Jasper Ernest Lewis Baldwin, a patent agent of Wellington (Mr J. D. Dalgety). Loader claimed £B5O damages for loss of profits after the alleged pirating of an invention.

Mr Justice McGregor reserved his decision.

Mr Harding said the action arose out of allegations that a firm of patent attorneys unjustifiably delayed the prosecution of an application by the plaintiff for a patent at a time when he was complaining his invention was being pirated bv the companv of H. C Urlwin. Ltd

In 1949. the plaintiff had invented an improved type of metal box for electrical installations and applied for letters patent. Licence Granted

In June. 1949. the plaintiff had granted by deed an exclusive licence for the invention to H. C. Urlwin. Ltd.. and agreed he would permit the company, without additional cost, to use any improvement he made to the invention.

In September, the plaintiff having invented an improved switchbox. instructed Baldwin, Sett and Carey to file a provisional specification. Shortly afterward the plaintiff disclosed the details of his second invention to Urlwins. Ltd., but was told the company did not want to make use of it.

An application for a box similar to the plaintiff’s second invention had been filed by patent agents whose business Baldwin. Son and Carey had acquired in May. 1951. In June. 1951. Urlwins, having informed the plaintiff it had completed arrangements with the patentee of a better switchbox. advised it would manufacture that box exclusively and cancel the existing licence. In July. 1951, the plaintiff complained to Baldwin. Son and Carey that Urlwins had pirated his second invention and was told the company had applied for letters patent. Successful Suit The plaintiff subsequently received a patent and successfully sued Urlwin’s. Ltd., for infringing the patent after specifications had been advertised.

It was alleged that because of the alleged negligent delay on the part of Baldwin. Son and Cariey the plaintiff had suffered damage in respect to profits.

Submitting that the action was "misconceived.” Mr Dalgety said the defendant’s “general answer’’ would be that he obtained letters patent in the face of “very real objections from the patent office as soon as he could in the circumstances he had to deal with.” The latters patent. when obtained, were good enough on the face of them to force Urlwin to admit liability in an infringement action. Colin Douglas McCreddie said in evidence he was a registered patent attorney practising in Wellington and was familiar with the defendants’ contention that it had been desirable to wait for a British patent grant before actively continuing the prosecution of the plaintiff's patent application in New Zealand. Former Employee Cross-examined by Mr Dalgety. the witness said he was formerly employed by the defendant and had given him his resignation. Mr Dalgety: Isn’t it a fact that while you were employed by him and being paid by him you were operating surreptitiously as a patent attorney on your own account?—Na McCreddie said that while receiving a substantial salary from Baldwin he himself had been operating as a patent attorney “on my own account and in my own time." His (McCreddie’s) firm had subsequently sent letters to clients of defendant firms. Mr Dalgety: You have no love for Mr Baldwin, have you?—l am not prejudiced against Mr Baldwin. Mr Dalgety: But it is a fact that you and your Christchurch partner have been here largely throughout this two-day trial?—Yes.

Mr Dalgety submitted there was no evidence to support the allegation that the defendant had wilfully delayed the plaintiff's application for a patent. Before prosecuting the plaintiff’s application for a patent the defendant had wanted to ascertain how a similar claim was faring in England. "By achieving a good result in England, the result is ab'e to assist you in persuading the examiner here to grant yon what you are contending for.” Tn his submissions. Mr Harding said it was unfair to attack a witness without showing “that witness’s action was a breach of duty to his employer.”